Should this judicial vacancy be filled by election or appointment? A court steps in.

Florida Gov. Rick Scott is involved in a lawsuit over whether he can appoint a judge or the vacancy must be filled by an election. Sam Navarrosnavarro@miamiherald.com

Florida Gov. Rick Scott is involved in a lawsuit over whether he can appoint a judge or the vacancy must be filled by an election. Sam Navarrosnavarro@miamiherald.com

TALLAHASSEE

A state appeals court Tuesday morning quickly stepped into a legal battle about whether a Northeast Florida judge should be appointed by Gov. Rick Scott or elected. The order cleared the way for an appointment process to continue at least temporarily.

The First District Court of Appeal issued an order after a flurry of activity that included Scott administration attorneys filing a request late Monday to block a ruling earlier in the day by Leon County Circuit Judge Charles Dodson.

The lawsuit, filed by Jacksonville attorney David Trotti, is part of a handful of disputes in recent years about whether the governor has the power to fill certain judicial seats — or whether the seats should be filled through elections.

Trotti, who seeks to run for an upcoming vacancy created by the retirement of Fourth Judicial Circuit Judge Robert Foster, contends that the seat should be filled in the November election. Scott’s lawyers say the position should be filled through appointment.

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Foster was expected to leave office Jan. 7, 2019, which would be the end of his term, because of a mandatory retirement age. But on April 2, Foster sent a letter to Scott making the retirement effective Dec. 31, four business days ahead of schedule.

The Scott administration takes the position that the governor’s acceptance of a judicial resignation before the start of an election-qualifying period creates a vacancy that will be filled by appointment, rather than election. The Fourth Judicial Circuit is made up of Duval, Clay and Nassau counties.

In the challenge filed by Trotti, Dodson ruled last week that the seat should be filled by election and issued an injunction against the Scott administration and a judicial nominating commission moving forward with an appointment process. The state appealed Dodson’s ruling last week, which placed an automatic stay on the decision.

But Monday, Dodson again ruled in favor of Trotti and vacated the automatic stay — and complained that the Scott administration had essentially ignored his earlier injunction. Dodson pointed to a May 16 hearing during which he said the nominating process should “cease immediately.”

“If the governor and secretary of state had any doubt about that, there should have been a motion for clarification or something of the like filed,” Dodson wrote Monday. “Instead it was as if I had not ruled. The nominating process kept going. My order was not even a bump in the road.”

But Scott administration attorneys filed a motion late Monday with the First District Court of Appeal requesting reinstatement of the stay on Dodson’s earlier ruling. They said the Florida Constitution and earlier cases — including a case filed by Trotti in 2014 — make clear that Scott has the authority to appoint a replacement for Foster.

The appeals court Tuesday morning issued an order giving Trotti until Friday to respond to the Scott administration’s motion. It also said the appointment process can at least temporarily move forward.

“The automatic stay … shall remain in effect to permit the Fourth Circuit Judicial Nominating Commission to continue its interview and nomination process, pending a final ruling on the (Scott administration’s) motion for review by this court,” the one-page order said.

Trotti, who lost the 2014 case, sought to qualify to run for Foster’s seat but was denied. Dodson’s ruling last week said Trotti should be listed on the state Division of Elections website as qualifying to run for the judgeship. Dodson wrote that the “creation of an artificial appointment” had occurred.

But in the motion filed late Monday, Scott’s attorneys said Dodson’s order would put Trotti into office by “default.” Qualifying for judicial races ended last month.

“Here, the undisputed facts establish that Judge Foster’s resignation was tendered and accepted by the governor before the election process commenced at the beginning of the candidate qualifying period,” the motion said. “The governor is therefore constitutionally authorized and obligated to fill the vacancy by appointment, and the secretary of state is prohibited from qualifying candidates for a judicial seat that will not be filled by election. Because appellee’s (Trotti’s) arguments are contrary to the language of the Florida Constitution and well-established precedent, he cannot demonstrate a likelihood of success on the merits."